LAW Crown Liabilities Act 1 of 1910 - Legal Assistance Centre
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LAW
Crown Liabilities Act 1 of 1910.
Summary: This Act (SA GG 72) concerns state liability.
Applicability to SWA: This Act was extended to South West Africa by section 1(1)(b)
of the Railway Management Proclamation 70 of 1920 (OG 46). That section states “(1)
The control and management of the Railways and Harbours within the Protectorate of
South West Africa and of all subsidiary undertakings connected therewith hitherto
controlled and managed by the Railways and Harbours Administration of the Union of
South Africa (hereinafter called the Railway Administration) shall continue to be
vested in and to be exercised by the Railway Administration, and for that purpose…
(b) the following acts of the Union Parliament together with any regulations now or
hereafter existing thereunder shall, mutatis mutandis and so far as capable of
application, have force and effect within the Protectorate”. One of the laws listed in
paragraph (b) is the Crown Liabilities Act 1 of 1910, along with several other laws
since repealed.
According to Mwandingi v Minister of Defence 1990 NR 363 (HC) at 377C-D
(approved of on appeal in Minister of Defence v Mwandingi 1993 NR 63 (SC) at 77C-
F), “the Crown Liabilities Act 1 of 1910 was extended by the Railway Management
Proclamation 20 of 1920 to the territory [this is an error; the correct citation for this
Proclamation is Proclamation 70 of 1920]. It is true that it was so extended for purposes
of that proclamation, but the act applied in its entirety and it seems to me, once it was
extended, it was accepted by our courts as also binding on all other, at that stage,
departments (see Hwedhanga v Cabinet for the Territory of South West Africa 1988 (2)
SA 746 (SWA); Binga v Cabinet for South West Africa & Others 1988 (3) SA 155
(A)).”
The Act was repealed in South Africa by the State Liability Act 20 of 1957 (SA GG
5850), which was not made expressly applicable to South West Africa.
Regulations: The Act makes no provision for regulations.
Administration of Justice Proclamation 21 of 1919.
Summary: This Proclamation (OG 25) introduced Roman Dutch law to SWA. It
originally contained provisions relating to courts and legal practitioners, but these have
been repealed.
Amendments: The Proclamation is amended by Proc. 45/1920 (OG 41), Proc. 52/1921
(OG 75), Proc. 56/1921 (OG 76), Proc. 16/1930 (OG 375), Proc. 4/1933 (OG 500),
Proc. 31/1935 (OG 650), Proc. 4/1936 (OG 657), Deeds Registries Proclamation
37/1939 (OG 807), Ord. 6/1955 (OG 1899), Ord. 31/1960 (OG 2254), Ord. 34/1963
(OG 2504), Ord. 13/1966 (OG 2721), the SA Supreme Court Act 59 of 1959, the
Admission of Advocates Act 74 of 1964 (RSA GG 839) , the Civil Proceedings Evidence
Act 25 of 1965 (RSA GG 1066), and the Legal Practitioners Act 15 of 1995 (GG 1141).
Application of law: See section 5 of the Rehoboth Affairs Proclamation 1 of 1937 (OG
696) regarding jurisdiction over certain civil suits in the Rehoboth Gebiet.
LAW-1Regulations: The Act makes no provision for regulations.
Cases: Tittel v Master of the High Court 1921 SWA 58 and Collisons v Kruger &
Others 1923 SWA 74 are significant early cases interpreting this Proclamation.
See also –
R v Goseb 1956 (2) SA 696 (SWA)
Binga v Administrator-General, South West Africa & Others 1984 (3) SA 949
(SWA)
S v Redondo 1992 NR 133 (SC).
Interpretation of Laws Proclamation 37 of 1920.
Summary: This Proclamation (OG 35) sets forth rules of interpretation for statutes. It
is the Namibian equivalent of the South African Interpretation Act 33 of 1957.
Amendments: The Proclamation was amended by Proc. 11/1926 (OG 205), Ord.
4/1955 (OG 1899) and Ord. 19/1961 (OG 2320). It was extended to the Rehoboth
Gebiet by Proc. 28/1923 (OG 118).
Regulations: The Act makes no provision for regulations.
Cases:
DTA of Namibia & Another v SWAPO Party of Namibia & Others 2005 NR 1 (HC); S
v Nghitukwa 2005 NR 116 (HC)
Gemfarm Investments v Trans Hex Group 2009 (2) NR 477 (HC) (section 11(1)).
Medical Association of Namibia Ltd & Another v Minister of Health and Social
Services & Others 2010 (2) NR 660 (HC), overruled by Minister of Health and
Social Services & Others v Medical Association of Namibia Ltd & Another
2012 (2) NR 566 (SC) (addressing the meaning of section 12(3)(c) read
together with the definition of “law” at paras 64-69)
Kamahere & Others v Government of the Republic of Namibia & Others 2016 (4) NR
919 (SC) (section 11(2)(c); reference to section 2 in concurring judgment).
Justices of the Peace and Commissioners of Oaths Act 16 of 1963, as
amended in South Africa to November 1979.
Summary: This Act covers the appointment, powers and duties of justices of the peace
and commissioners of oaths. It repeals the Justices of the Peace and Oaths Act 16 of
1914. The Justices of the Peace and Commissioners of Oaths Amendment Act 55 of
1970, which made the Act applicable to SWA, repealed the SWA Commissioners of
Oaths Proclamation 24 of 1928.
Applicability to SWA: Section 1 defines “Republic” to include “the territory of South
West Africa”. Section 11A states “This Act and any amendment thereof shall apply
also in the territory of South West Africa, including the Eastern Caprivi Zipfel.”
Transfer of administration to SWA: The administration of this Act was transferred
to SWA by the Executive Powers (Justice) Transfer Proclamation (AG 33/1979), dated
12 November 1979, as amended. None of the amendments to the Act in South Africa
after the date of transfer and prior to Namibian independence – the Justices of the Peace
LAW-2and Commissioners of Oaths Amendment Act 110 of 1984 (RSA GG 9360), the Justices
of the Peace and Commissioners of Oaths Amendment Act 36 of 1986 (RSA GG 10198)
and the Transfer of Powers and Duties of the State President Act 97 of 1986 (RSA GG
10438) – were made expressly applicable to SWA.
Amendments: The following pre-independence South African amendments were
applicable to SWA –
• General Law Amendment Act 80 of 1964 (RSA GG 829)
• Justices of the Peace and Commissioners of Oaths Amendment Act 8 of 1965
(RSA GG 1054)
• Justices of the Peace and Commissioners of Oaths Amendment Act 21 of 1967
(RSA GG 1677)
• Justices of the Peace and Commissioners of Oaths Amendment Act 55 of 1970
(RSA GG 2828)
• Parliamentary Service Act 33 of 1974 (RSA GG 4374)
• Second Bantu Laws Amendment Act 102 of 1978 (RSA GG 6095)
Terminology in the Act was amended by the Native Laws Amendment Proclamation,
AG 3 of 1979 (OG 3898), deemed to have come into force in relevant part on 1 August
1978 (section 5 of AG 3 of 1979).
Regulations: Section 11(4) states: “Anything done under any provision of a law
repealed by sub-section (1), shall be deemed to have been done under the corresponding
provision of this Act, if any.”
Regulations are authorised by section 10 of this Act. Pre-independence regulations
have not been researched. No post-independence regulations have been promulgated.
Notices: Notices regarding holders of office who are commissioners of oath are
contained in RSA GN R.1257/1972 (RSA GG 3619) as amended by RSA GN
R.56/1975 (RSA GG 4558), and in AG GN 128/1982 (OG 4672) and GN 100/2000
(GG 2312) (regional councillors to be Commissioners of Oaths).
Investigating officers of the Anti-Corruption Commission established by the Anti-
Corruption Act 8 of 2003, already appointed and to be appointed, are appointed as
justices of the peace for all magisterial districts by GN 33/2012 (GG 4883).
Certain inspectors for the Communication Regulatory Authority of Namibia are
appointed as Ex-officio Commissioners of Oaths, with effect from 15 February 2016,
by GN 48/2016 (GG 5971).
Cases:
De Roeck v Campbell & Others (1) 1990 NR 28 (HC)
Gonschorek & Others v Asmus & Another 2008 (1) NR 262 (SC) (regulations in RSA
GN R.1258/1972)
Namibia Financial Institutions Supervisory Authority v Christian & Another 2011 (2)
NR 537 (HC) at 553F-554A (Reg 7).
Delegation of Powers Ordinance 24 of 1973.
Summary: This Ordinance (OG 3365) addresses delegations of power by the
“Executive Committee of the Whites”. It would presumably now cover delegations by
the Namibian authority corresponding to this Executive Committee, in terms of Art
LAW-3140(4)-(5) of the Namibian Constitution; in terms of the transitional provisions in Art
140 of the Namibian Constitution, the reference to “Executive Committee” in the
Ordinance is now construed as the relevant Minister responsible for administration of
a particular law.
Amendments: The Ordinance is amended by Ord. 20/1975(OG 3498). It was also
amended for the purposes of the pre-independence Representative Authority for Whites
by Ordinance 3 of 1982 (Official Gazette 15 of the Representative Authority of the
Whites).
Regulations: The Act makes no provision for regulations.
Cases: The Ordinance is discussed in Waterberg Big Game Hunting Lodge Otjahewita
(Pty) Ltd v Minister of Environment 2010 (1) NR 1 (SC):
“The only statutory provision for delegations of authority referred to by counsel for
respondent, was a general authority to delegate powers of the Executive Committee of
the pre-independence period as contained in ss 2-6 of the Delegation of Powers
Ordinance 24 of 1973 as amended by s 1 of Ord 20 of 1975. It must be noted that s
6(2) of Ord 24 of 1973 as amended contains a typical savings clause by providing:
‘Any power, authority or function delegated to any person in terms of the
Ordinance repealed by s (1) shall be deemed to have been delegated to such
person in terms of this Ordinance.’
…I have considered arts 140 and 141 of the Namibian Constitution, which may be
regarded as serving the purpose of a savings clause dealing with the law in force at the
date of Namibian independence on 21 March 1990. The said Ord 24 of 1973 as
amended was never expressly repealed or amended by Act of Parliament or declared
unconstitutional by a competent court and consequently remained in force in terms of
art 140(1) of the Namibian Constitution.”
Law Reform and Development Commission Act 29 of 1991.
Summary: This Act (GG 331) establishes a Law Reform and Development
Commission. It was brought into force on 15 July 1992 by Proc. 21/1992 (GG 439).
Amendments: Act 4/1995 (GG 1036) amends sections 3, 5, 8 and 12. Act 2/2004 (GG
3238) amends sections 3, 6, and 8 and substitutes sections 4, 5 and 12. It was brought
into force on 15 July 2004 by GN 147/2004 (GG 3239).
Regulations: Regulations are authorised by section 14 of the Act, but none have yet
been promulgated.
Appointments: The appointment of a Chairperson is announced in Proc. 12/2011 (GG
4767). No previous announcements could be located, although there were several
previous Chairpersons. (See, for example, GN 21/1997 (GG 1712), which refers to Mr
U D Nujoma as a full-time Chairperson.) A Chairperson is announced in Proc. 34/2015
(GG 5869).
Note that there are two Proclamations numbered as Proclamation 34 of 2015, in GG
5853 and GG 5869.
Note: Article 32(3)(i) of the Namibian Constitution discusses the President’s powers of
appointment, including some specific offices as well as covering the appointment of “any other
person or persons who are required by any other provision of this Constitution or any other law
to be appointed by the President”. Article 32(8) states that all such appointments “shall be
announced by the President by Proclamation in the Gazette”.
LAW-4Commentary: Yvonne Dauseb, “The Law Reform and Development Commission: Its
Role and Place in a Continuously Changing Society” in Dunia P Zongwe & Yvonne
Dauseb, eds, The Law Reform and Development Commission of Namibia at 25: A
Quarter Century of Social Carpentry, Ministry of Justice, LRDC: 2017.
MISCELLANEOUS
Administrative Directive 1/1993 (Government Notice 16/1993, GG 583) sets forth the
procedures regarding proposed legislation.
COMMENTARY
Legal Assistance Centre, How Laws Are Made, 1996, available at www.lac.org.na
Dianne Hubbard, Law for All, Volume 1: Introduction to Namibian Law, Windhoek: Namibia
Institute for Democracy / Out of Africa Publishers, 2001
GW Geraldo & Isabella Skeffers, Researching Namibian law and the Namibian legal system,
2007, available at www.nyulawglobal.org/globalex/Namibia.htm
SK Amoo and I Skeffers, “The rule of law in Namibia” in N Horn & A Bösl (eds), Human
Rights and the Rule of Law in Namibia, Windhoek: Macmillan Namibia, 2008,
available at www.kas.de
SK Amoo, An Introduction to Namibian Law: Materials and Cases, Windhoek: Macmillan
Education Namibia, 2008 (reviewed by Steve Gray in Namibia Law Journal, Volume
1 Issue 2, 2009, available at www.kas.de)
OC Ruppel & KG Ruppel-Schlichting, “Legal and Judicial Pluralism in Namibia and Beyond:
A Modern Approach to African Legal Architecture?”, 64 Journal of Legal Pluralism
and Unofficial Law 33 (2011)
New Perimeter, Namibia – Access to Justice: Paralegal Manual, 2012, available at
www.lac.org.na
Felicity !Owoses-/Goagoses, “Reading down words in a statute, the courts’ role, and the place
of Parliament: The approach of the Namibian courts”, Namibia Law Journal, Volume
4, Issue 1, 2012
Dianne Hubbard, “Infusions of the Constitution into the Common Law” in Nico Horn &
Manfred O Hinz, eds, Beyond a Quarter Century of Constitutional Democracy:
Process and Progress in Namibia, Windhoek: Konrad Adenauer Stiftung, 2017.
Ministry of Justice, “The Law Making Process” (brochure), undated.
The Repeal of Obsolete Laws Act 21 of 2018 (GG 6812), which was brought into force as of
1 March 2019 by GN 32/2019 (GG 6851), repeals 143 laws (including 40 principal statutes and
their amending statutes). No separate entry is included here for this repealing Act since it
contains no substantive provisions other than to effect the repeal of the statutes in question.
INTERNATIONAL LAW
Hague Convention on Abolishing the Requirement of Legalisation of Foreign Public
Documents (Apostille Convention), 1961
See Ministry of Justice, “Issuing of Apostilles by the Ministry of Justice”
(brochure), undated.
See also GN 104/2018 (GG 6614) on fees for the issue of apostilles.
SADC Protocol on Legal Affairs, 2000
SADC Protocol Against Corruption, 2001
*Agreement Amending the SADC Protocol on Corruption, 2016
SADC Protocol on Extradition, 2002
SADC Protocol on Mutual Legal Assistance in Criminal Matters, 2002
LAW-5See also COURTS.
See also Criminal Law and Procedure Act 51 of 1977 (CRIMINAL LAW AND
PROCEDURE).
See also CUSTOMARY LAW.
See also DAMAGES.
See also EVIDENCE.
See also JUDGES.
See also LEGAL PRACTITIONERS.
See also PRESCRIPTION.
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